RAJAMANI Vs. MALLESWARI

JUDGEMENT

(1.) THE Plaintiff is the appellant in this appeal. THE Plaintiff has filed the suit in O.S. No. 404 of 1997 for a decree directing the defendants to execute the sale deed for half share in the suit property after receiving the value tobe fixed by the Court.

(2.) ACCORDING to the plaintiff, the first defendant is her brother and the second defendant is the daughter of the first defendant. The suit property was owned by Plaintiff and first defendant's mother Girija Ammal who died intestate leaving behind the plaintiff and defendants 1 and 2. Therefore, the plaintiff is entitled to half share and the first and second defendants put together have half share in the suit property left by Girija Ammal. But without the plaintiff's consent and knowledge, even though the plaintiff sought to purchase the half share of the defendants 1 and 2 under the right of pre-emption, the suit property was sold by them to the third defendant clandestinely. The third defendant not only purchased the half share owned by the defendants 1 and 2 but a larger extent of land and therefore the sale is invalid, hence, the suit was filed.

(3.) DURING the pendency of the first appeal, the defendants 1 and 2, who remained exparte before the trial court, filed I.A. No. 209 of 2005 before the first appellate Court seeking to mark certain documents namely patta etc., to prove the extent of land sold by them to the dthird defendant. Thereafter, the plaintiff/respondent in the first appeal also filed I.A. No. 153 of 2006 for production of certain documents which are in her custody. The first appellate Court, taken up both I.A. No. 209 of 2005 and I.A. No. 153 of 2006 together and by a common judgment and decree dated 16.10.2005 found that there is a dispute between the plaintiff and the defendants with regard to the extent of land occupied by the plaintiff and the extent of land sold to the third defendant and remanded the matter back to the trial court for fresh consideration so as to enable the parties to adduce further evidence. Aggrieved against the said order dated 16.10.2005, the present Civil Miscellaneous Appeal is filed by the plaintiff.